Retaliation Claims on the Rise

It's always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.

With so many people now out of work, it's natural that retaliation claims against employers is now on the rise - 23% this year over last.

The classic example of retaliation comes from an employee who did the right thing - a whistleblower notification, a complaint against a supervisor or fellow employee - and that was terminated, transferred or had other repercussions from their employer.

A good article on this trend is from the Wall Street Journal.

California Labor Complaints - 2008

The California Department of Fair Employment & Housing released its statistics for 2008 last month, and there are some ominous signs that all employers should know:

1. Complaints to the DFEH increased by more than 15% in 2008 (3,000 more complaints);
2. Disability claims were most frequently filed, followed by retaliation, sexual harassment and age discrimination;
3. In fact, disability claims comprised more than 36% of all claims;
4. Prosecutions of employers increased by 28 percent.

California also has a disproportionate ratio of total employee complaints - one out of every 5 complaints in the country is from California.

Time to get your house in order!

And a good analysis of these statistics is found from Christopher Olmstead of Barker Olmsted & Barnier.

The Dangers of E-mails in the Workplace

There is no such thing as an innocent e-mail in the workplace. While people believe it's electronic and potentially harmless, e-mails live in storage forever, and often are resurrected by lawyers when it comes to employee litigation.

In a recent newsletter, Fisher & Phillips attorney Tillman Coffey top lines the reasons why e-mails are so dangerous. We've also written about it here and here.

There are several reasons why both managers and employees should re-thinking sending an e-mail hitting the "Send" button:

1. E-mails about employees are discoverable. Comments on an employees performance (including comments whether they are too old, or sick, or ineffective) are actionable. Lawyers love to see these e-mails.
2. Among the most common problems in e-mail: Messages that create a sexist, racist or hostile work environment, note experts. One e-mail message that made the rounds at Chevron in 1999 was titled "25 reasons why beer is better than women," Flynn said. Four female executives used it as evidence of a hostile work environment and were awarded $2.2 million.
3. The tone of an e-mail is easily misconstrued (using all CAPS, for example).

Before sending an e-mail, take a breath. Ask yourself if you'd like to answer questions about it in front of a jury.

Make sure to get an e-mail policy included in your handbook.

And remember, hitting the send button memorializes your comments forever.

If You Don't Act, They Will Come

There are a number of missteps an employer can make when faced with an employee accused of harassment or discrimination.

But the easiest mistake to avoid is often the first decision an employer makes - to ignore that accusation.

Employers are mandated to take "prompt corrective action". In most cases, that means conducting an independent, unbiased workplace investigation; consulting with a labor attorney; avoiding retaliation; and taking appropriate action against the accused.

These steps are appropriate and necessary for all businesses. I'm constantly amazed, however, how large corporations replete with well-staffed human resources employees get accused in this area.

Case in point: The Cheesecake Factory, which was recently sued by the EEOC for failing to respond to accusations of same-sex sexual harassment.

The case is documented by Melissa Fleischer, Esq. in the Employment Law Information Network blog.

Sexual Harassment Training is a "Sham"?

Alexander McPherson, a professor at UC Irvine, wrote an op-ed in the Los Angeles Times recently outlining his reasons for not participating in mandatory Sexual Harassment training.

His rationale proves that even professors of molecular biology can be idiots.

He cites three reasons for refusing to comply with California law:

1. The training is 'a disgraceful sham';
2. "The state, acting through the university, is trying to coerce and bully me into doing something I find repugnant and offensive...I am being required to do it for political reasons. The fact is that there is a vocal political/cultural interest group promoting this silliness as part of a politically correct agenda that I don't particularly agree with."
3. [The training] "violates my academic freedom and my rights as a tenured professor."

Of course, Professor McPherson hasn't attended the training yet, and is relying on others:

As far as I can tell from my colleagues, it is worthless, a childish piece of theater, an insult to anyone with a respectable IQ, primarily designed to relieve the university of liability in the case of lawsuits...

Actually, the university has nothing to do with it; the law was passed by the state legislature and is required for all businesses with 50 or more employees.

In FY 2007, the Department of Labor received over 12,000 charges of sexual harassment. That does not take into account the number of harassed employees who went directly to their attorney, or (in California), went to the state labor board with complaints.

Professor McPherson obviously is too important and too intelligent to lower himself to the level of every other supervisor and manager in California by taking the course. It's two hours long and not the end of the world.

There is no 'vocal cultural/political interest group' promoting the training. Unless you count the thousands of businesses who have paid hundreds of millions of dollars because their management did not know how to manage a hostile workplace, or avoid retaliation.

The EEOC alone fined employers nearly $50 million for harassment charges. Someone is paying for all of that.

The imposition of training that has a political cast violates my academic freedom and my rights as a tenured professor. The university has already nullified my right to supervise my laboratory and the students I teach... It has threatened my livelihood and, ultimately, my position at the university. This for failing to submit to mock training in sexual harassment, a requirement that was never a condition of my employment at the University of California 30 years ago, nor when I came to UCI 11 years ago.

Uh, no it doesn't. If you were a professor only, you wouldn't have to 'submit' to the training. But you supervise a laboratory and others - you are in a position leadership and responsibility.

And the fact that training was never a condition of employment 30 years ago? Wah.

30 years ago, you could still smoke in the workplace. It was likely that women and minorities did not have an equal opportunity for promotions. Times change. Professor McPherson has not.

No one is impacting his livelihood other than the good professor himself. If he 'lowered' himself enough to attend a 2 hour class, there would be no impact.

But clearly he is too self-impressed and too important to do what everyone else in the state has done.

Sexual harassment training won't eliminate harassment or absolve employers from liability. But it's the law. Same as stopping at a stop sign.

Buckle up and deal with it, professor.

Love Contracts - Making Things Easier

The workplace world is more intense than ever. And the likelihood that a workplace romance will develop is increasing - A 2007 Spherion survey showed that about 40% of U.S. workers have dated a co-employee, and another 40% would consider a workplace romance.

Employers generally cannot prohibit employees from dating one another (although you can prohibit supervisors from dating subordinates) - yet 50% of all sexual harassment cases begin when the relationship was consensual.

A non-fraternization policy in your handbook is a start, but generally isn't good enough. More and more, businesses are starting to rely on love contracts as a method to mitigate the chance of problems when the romance eventually turns sour.

Joseph Gagnon, writing on behalf of Fisher & Phillips LLP, says that

Properly implemented and appropriately drafted, love contracts will reduce the likelihood of litigation arising from workplace relationships.

To my knowledge, love contracts haven't been fully tested in the courts yet - but Gagnon's outline of what should be in a 'love contract' and its benefits are useful reading.

Here's the full article.

Porn in the Workplace

A new report in Newsweek shows than employees watching internet pornography at work has risen 23% in the past year.

The article quotes several thoughts on the rise:

• Employees are looking for 'an escape';
• The huge proliferation in "adult" websites;
• A younger workforce that believes porn is 'not that big a deal';

Porn Star Valentina Vaughn

The last reason resonates with me - maybe porn is (or isn't) that big a deal to individuals - but it certainly must be for employers.

There's the lost productivity; increased chances of sexual harassment lawsuits; and the potential for viruses that infect many porn websites.

All businesses should have a written policy stating the internet and company-e-mail is for business use only. And discipline needs to occur immediately when violations are found.

Finally, consider having sexual harassment training at your business. The examples many of us have for the lost revenue to employers around the country should result in a sobering experience for everyone.

Newspaper Settles Sexual Harassment Lawsuit

I mean, really. As if newspapers didn't have enough problems these days, the Minneapolis Star-Tribune will now have to pay more than $300,000 to two women who accused the paper of sexual harassment.

The charges included vulgar comments, dirty jokes and sex-based statements, according to the EEOC (which filed the lawsuit).

The Star Tribune also agreed to:

• Take steps toward preventing sexual harassment or retailiation against female employees in the mailroom;
• Ensure it employs a mailroom supervisor or manager for every shift;
• Employ a human resources representative responsible for mailroom functions, including monitoring and resolving any complaints; and to
• Also will provide annual sexual harassment training.

Wouldn't it have been cheaper to do all that before?

From the Minneapolis/St. Paul Business Journal

Retaliation on the Rise - Again

In 1997, retaliation claims comprised about 23% of all cases filed with the EEOC. Last year, that number jumped to 32.3%.

Why the increase?

For one, employment attorneys advise that it's much easier to prove retaliation than the underlying cause (say, sexual harassment). While harassment may often boil down to 'he said, she said', retaliation is often black-and-white.

I've conducted workplace investigations where we were convinced there was no harassment, only to find out an employer retaliated against that same employee. In other instances, I've seen an employee's attorney not contest the harassment only to focus on the retaliation.

Robin Shea, writing in Costangy, Brooks & Smith's corporate newsletter, does an excellent job of summarizing the issues with retaliation.

"Cheaters" Caught Cheating?

According to the Dallas Morning News, the popular television show "Cheaters" has been sued by the Equal Employment Opportunity Commission for alleged sexual harassment.

No business is immune from charges of sexual harassment; but I frequently run into businesses that attempt to refute these charges by saying something like, "but that's the way our business is."

Nonsense. No business is immune - whether it's in the pornography industry or a white collar, high-tech office.

Take steps to prevent harassment from occurring and remember, no one is immune.

Nevada Company Pays $425,000 To Settle Sex Harassment/Retaliation

What's so troubling about this case is not the sexual harassment - which is offensive enough - but the retaliation. Attorneys are finding it much easier to prove retaliation charges than harassment charges. Almost anything done by an employer after harassment is alleged can be construed as harassment.

Also, you would expect to see cases like this in California rather than Nevada. With the economy in Nevada - especially Southern Nevada - sinking - all it takes is one mistake to end your business. Don't be like Scolari's.

Scolari’s Warehouse Markets will pay $425,000 and furnish other relief to settle a class sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on September 5.

The EEOC charged in its lawsuit that 19 female employees, several of whom were teenagers at the time, were subjected to repeated and sometimes severe sexual harassment by the company’s senior officers across multiple stores in the Reno area. The EEOC asserted that Scolari’s senior officers and managers inappropriately touched female employees, propositioned them, made lewd comments and passed around naked photos of themselves, among other acts. In addition, the EEOC charged that Scolari’s management failed to address and correct the unlawful conduct, even when the victims complained about it. Instead, the women were fired or were forced to abandon their jobs after they complained about the harassment.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Nevada after first attempting to reach a voluntary settlement (EEOC v. Scolari’s Warehouse Markets, CV 04-229 DAE - RAM). A consent decree setting forth the terms of the agreement was approved by the court on Sept. 5.

Under the three-year consent decree resolving the case, Scolari’s agreed to pay $425,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. As part of the injunctive relief, Scolari’s further agreed to provide training to all employees; provide reports to the EEOC regarding its employment practices for a period of three years; and, to hire a consultant to review its harassment policies and procedures.

“In a case like this, where several of the victims were young women new to the work force, victims of harassment often feel further isolated and marginalized,” said EEOC Los Angeles Regional Attorney Anna Y. Park. “This case shows that employers need to investigate and act on complaints of harassment before the problem mushrooms.”

EEOC’s Los Angeles District Director Olophius Perry added, “Nevada employers need to be vigilant in protecting workers who have the courage to speak out against harassment. The EEOC is determined to protect the civil rights of all workers, and that includes protecting their right to protest illegal mistreatment.”

Independent Investigations Can Reduce Your Liability

An employee has accused her supervisor of sexual harassment, and just informed you about it.

Now what do you do?

First, call your employment attorney, who will likely recommend an independent workplace investigator to interview all the relevant witnesses and work with that attorney to develop recommendations as to what, if any, steps should be taken.

Conducting your own investigation is fraught with peril. First, you don't have the experience or knowledge to do so, and secondly - you can avoid liability by having that investigation conducted by a neutral third party.

Of course, the first order of business is to make sure you have non-harassment and non-retaliation policies in writing immediately.

Men Fighting Back in the Workplace

It used to be that sexual harassment claims were made almost exclusively by women. But times have changed. According to the EEOC, men accounted for a record 16 percent of all sexual harassment complaints in 2007, nearly double the 9 percent figure in the early 1990s.

And men are also filing more FMLA Claims as well.

Attorneys believe this trend is caused by the so-called Father's Rights Movement.

Regardless of the cause, the monetary impact to employers is significant. One man successfully sued his employer for $11.65 million - he charged he was retaliated against for taking time off under the FMLA to care for his aging parents. Schultz v. Advocate Health, No. 01C-0702 (N.D. Ill. June 5, 2002). The case settled for an undisclosed amount in 2003.

Make sure to establish gender-free retaliation and harassment policies in your workplace. It's not just women who are suing anymore.

Courtesy law.com.

Retaliation: The New Emerging Issue for Employers

Employment attorneys tell me that the reason retaliation claims are on the rise is that retaliation is much easier to prove than harassment. Some plaintiffs lawyers are even 'giving up' on a harassment complaint and just focus on retaliation as a result.

When I conduct workplace investigations, one of the things I look for is whether retaliation has taken place. It may be that there was no actual harassment - but there was retaliation.

The simplest example is when an employee is terminated shortly after making a harassment or discrimination claim. The burden is on the employer to prove he or she did not terminate because the accusations were made.

And retaliation can be much more subtle - co-workers avoiding the accuser; management moving the accuser to another office or work location.

Make sure you add a non-retaliation policy to your employee handbook. But you need to be vigilant in making sure the policy is truly in practice.

This excellent article from Shaw/Valenza illustrates some recent retaliation decisions made by the courts.

Love Contracts

Even though businesses frown on workplace romance, let's face it: most of us have three ways of meeting people: through our friends, at a bar, or at work. And since we spend at least one-third of our lives at work, the chances are there that a romance will develop.

In most states, an employer cannot prevent employees from dating. (However, most states permit employers from halting a romance between a supervisor and direct report).

And remember - 50% of all sexual harassment cases start when the relationship was consensual.

So how to mitigate the issue?

One way is through a so-called love contract, in which both parties acknowledge their relationship is voluntary and consensual. Although it's questionable whether these contracts are enforceable, it seems desireable for an employer to get something in writing.

Here's an excellent article about love contracts by Ann Margaret Pointer of Fisher & Phillips LLP.

CA Supreme Court Rejects Liability for Supervisors in Retaliation Cases

Supervisors cannot be held liable for retaliation under the California Fair Employment & Housing Act.

The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership issued the decision.

Retaliation is becoming much more popular in employee relations cases, since it's much easier to prove retaliation than harassment. Often, a harassment investigation can only reveal a 'he said, she said' scenario. The standard for proving retaliation is much lower, and many plaintiff's attorneys are dropping the harassment allegations and staying only with retaliation.

According to Jackson Lewis:

Although individual supervisors cannot be held liable for retaliation, employers should not jump to the conclusion that this decision will reduce FEHA claims significantly. Retaliation claims against individual supervisors are usually only one of several claims asserted by former employees who sue. Indeed the history of this case aptly illustrates this point: Jones asserted claims for harassment and discrimination, as well as retaliation. While litigation costs may diminish somewhat, employers can best avoid the courthouse by adopting and enforcing anti-harassment and -discrimination policies and by training their supervisors to recognize workplace harassment, discrimination and retaliation.

That means training your supervisors, conducting an effective investigation, and implementing policies that absolutely forbid harassment - and retaliation